India Legal 30 june 2016

NDIA EGALL
June 30, 2016 `100
www.indialegalonline.com
I STORIES THAT COUNT
44
Euthanasia:GovernmentTacklingDeathWish
ByRameshMenon
SupremeCourtJusticesDipakMisra andShivaKirtiSingh
deliverablockbusterjudgmenttoprotectthoseaccusedfromfrivolousarrests
ByInderjitBadhwar08
APowerfulBlowfor
HumanRights
Vipin Pubby
Jat quota: New
politico-legal
calculus
40
Kumar Rajesh
Government
slept as
Mathura
burnt 36
Usha Rani Das
& Tithi Mukherjee
Lawyers on a
summer
holiday
78
By
sra andShivaKirtiSingh
oseaccusedfromfrivolousarrests
war08
Ajith Pillai
explains Modi’s
globe-trotting
and the nuclear
matrix 26
JusticeShivaKirtiSingh JusticeDipakMisra

JUNE30,2016
Held to Ransom
The Madras High Court’s decision to debar advocates for professional
misconduct has led to much furor. But its aim is to rein in unruly protests
and dharnas. R RAMASUBRAMANIAN
A Law unto Themselves
The Supreme Court’s recent order asking Bhopal Police to compensate a
doctor and her lawyer mom for arresting them illegally upholds the Indian
citizen’s right to dignity. INDERJIT BADHWAR
8
LEAD
20
Going N-Clubbing
Modi’s US visit followed by his stopover in Mexico has seen gains vis-à-vis
India’s entry in the prestigious Nuclear Suppliers Group with both nations
backing it. But will our N-quest end soon? AJITH PILLAI
26
30
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Editor
Inderjit Badhwar
Managing Editor
Ramesh Menon
Deputy Managing Editor
Shobha John
Executive Editor
Ajith Pillai
Bureau Chiefs
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Beijing Blockade
China’s objections to India’s entry in the Nuclear Suppliers Group are
specious and should not be binding on the other members of this
international body. YOGESH M TIWARI
COURTS
DIPLOMACY
4 June 30, 2016

A rational green policy would include conserving this vital resource and
mainstreaming the traditional knowledge of communities that live in its
midst. It’s time we adopted it. S GOPIKRISHNA WARRIER
Whither Biodiversity?
REGULARS
Ringside .......................................................................6
Quote-Unquote ............................................................7
Supreme Court.....................................................18, 19
Courts...................................................................24, 25
National Briefs............................................................39
International Briefs......................................................58
Figure It Out ...............................................................77
Wordly Wise................................................................81
People ........................................................................82
After having singed its fingers in February, chief minister
Manohar Khattar’s government was well prepared for the
second phase of the Jat agitation and managed to contain it.
VIPIN PUBBY
There has been debate on whether the legal fraternity should take long
breaks given the huge case backlog. Here’s how lawyers and judges
recharge themselves. USHA RANI DAS & TITHI MUKHERJEE
Holiday High 78
FollowusonFacebook.com/indialegalmedia
andTwitter.com/indialegalmedia
60
40
The June 2 mayhem in Mathura was a grim reminder of how political
patronage allowed a self-proclaimed cult to flourish, occupy public
land and break the law with impunity. KUMAR RAJESH
36Cult Carnage
Haryana’s Hard Lessons
Awareness is
the key to solv-
ing the drastic
organ shortage
in India which
leaves many
patients to die
before they
can get
transplants.
DEEPTI JAIN
Have a
Heart
54
A draft bill on passive euthanasia is in the works. The
government is finally ready to legislate on the issue and bring
relief to the terminally ill fighting for dignity. RAMESH MENON
POLITICS
Right to Die 44
SPOTLIGHT
The population of this majestic bird, once found in 11 states in India,
has dwindled to no more than 125. Is help on the way?
PRAKASH BHANDARI
Flight of the Bustard
ENVIRONMENT
64
A parliamentary panel has recommended that traditional drugs be
regulated and untested and unlicensed formulations be checked.
AJITH PILLAI
Not What the Doc Ordered
HEALTH
TRAVEL
On June 23, the United Kingdom votes to stay in or leave the
European Union. The result of this referendum could well decide the
future of its PM, David Cameron. DENIS LYONS
Britain’s Brexit Question 68
72
GLOBAL TRENDS
The Army Headquarters has increasingly been filing appeals against
giving disability benefits and pensions to service personnel. Why are
they being denied their due? USHA RANI DAS
A Soldier’s Lot
50
Cover Illustration and Design: ANTHONY LAWRENCE
Cover Picture: J S STUDIO
5INDIA LEGAL June 30, 2016
DEFENSE
ACTS & BILLS

The judiciary must not take on the coloration of whatever
may be popular at the moment. We are guardian of rights,
and we have to tell people things they often do not like
to hear.
—Rose Elizabeth Bird, 25th chief justice of California
VERDICT
6 June 30, 2016
Aruna

QUOTE-UNQUOTE
7
In the territory stretching
from West of India’s border
to Africa, it (terrorism) may
go by different names,
from Laskhar-e-Taiba, to
Taliban to ISIS. But, it’s
philosophy is common: of
hate, murder and violence.
Although it’s shadow is
spreading across the
world, it is incubated in
India’s neighbourhood.”
—Prime Minister Narendra Modi,
addressing the US Congress
“I am happy to know that the prime minister takes so
much interest in Delhi government. The prime minister
spends a lot of time abroad. But when he is in India,
most of his time is spent in subjects related to Delhi
government.’’
—Delhi CM Arvind Kejriwal, in a letter to home minister Rajnath
Singh, in the wake of the spying controversy
“I request
Congress, AAP
and other political
parties to stay out
of my battle. I
speak only on my
behalf. It’s my fight
vs a dictatorial
man sitting there
operating like an
oligarch. Rest of
you go pick your
own fights.”
—Anurag Kashyap,
the co-producer of the
film Udta Punjab,
asking political parties
to keep off from the
controversy over the
film, on Twitter
“Udta ****** by
any other name,
and with 1000
cuts, still wont
change the grim
reality of ******.
Deal with the
reality.Leave the
film alone.”
—Columnist Shobhaa
De, on Twitter
“Maharana Pratap
was a great soul and
united 36 communi-
ties... History hailed
(Akbar) as a great
man. He killed
25,000 people,
including women,
children and the
elderly in Mewar.”
—VK Singh, MoS for
external affairs, on NDTV
“Challenges are very
heavy but there is no
room for despondency.
Those who are writing
off the Congress party
are writing its
premature obituary.”
—Congress leader Jairam
Ramesh, reacting to PM Modi
calls for “Congress-mukt
Bharat (Congress-free India)
in the Hindustan Times
“
INDIA LEGAL June 30, 2016

A
RECENT Supreme
Court judgment
penned by Justice
Dipak Misra sharing
the bench with Justice
Shiva Kirti Singh has
ripped into the police’s
callous disrespect for individual liberty.
Amongst the most precious rights gifted to
us by the founding fathers of the Indian con-
stitution who gifted us our democratic
republic is the freedom to enjoy personal
autonomy and independence. They tried to
fetter the powers of arrest by the state to
protect citizens against tyranny and official
harassment in the exercise of their rights
and duties. Colonial despotism—the Rule of
the Imperial Crown—was supposed to have
been replaced by the Rule of Indian Law.
The government, as the adage goes, should
always be bound and shackled by the chains
of the constitution.
Alas, the more you read about law
enforcement in the Indian Union, the more
A
Thunderbolt
from the
Supreme
Court
Chief Justice Thakur should rightly be
proud of his brothers who, despite
attacks on “judicial activism”, are
safeguarding this republic from
the dangers of becoming a
police state. EDITOR-IN-CHIEF
INDERJIT BADHWAR highlights a
recent judgment which should
resound in all countries that profess
their faith in the Rule of Law
LEAD/Landmark Judgment/Human Rights
Anil Shakya
8 June 30, 2016

you weep as you see the law of the land defi-
antly snubbed by the very forces sworn to
uphold it. Undertrials, most of them illiter-
ate, poor, the wretched of the earth, as Franz
Fannon called them, belonging to the under-
class, languish in jail for years without trial or
access to the courts. Thousands of innocents
wait on death row without access to lawyers
or appeals. (Don't take my word for this.
Please refer to the horror story documented
by the National Law University, Delhi). What
good is the law if the system victimizes and
denies jurisprudence to those most in need of
its majesty? As Fannon put it: “Each genera-
tion must discover its mission, fulfill it or
betray it, in relative opacity.”
As Indian judges grapple with the enor-
mity of injustice—often beyond their con-
trol—they sometimes break down and weep
openly as did Chief Justice TS Thakur at a
recent function in the presence of Prime
Minister Modi. But they also choose their
battlegrounds and fight the system as best as
they can, as reflected in the judgment
LAWKEEPERS’ DILEMMAS
(Far left) police lathicharge
citizens at the 2012
anti-rape protests at India
Gate; (left) UPSC
examinees detained
As Indian judges grapple with the enormity of
injustice—often beyond their control—they
sometimes break down and weep openly as
did Chief Justice TS Thakur at a recent function.
UNI

which is the subject of this article.
India, sadly, has never figured very highly
in international evaluations by human rights
groups. The country ranks poorly in the area
of custodial deaths, extra-judicial killings,
torture, judicial backlogs, prison reforms and
the rights of undertrials. One important facet
of this list of infamy is the police’s routine
violation of the rights of the accused—arbi-
trary arrests and harassment of people often
without magisterial sanction—even in bail-
able, non-cognizable offences.
International human rights organizations
must certainly take note of these unforgiv-
able transgressions of the state but simulta-
neously, they must also applaud the Indian
judiciary when it acts—as it has often done in
what is admittedly a Sisyphean task—to
excoriate and restrain these malpractices.
I offer a personal salute to Justices Misra
and Singh for roaring like protective lions in
the portals of the halls of justice and award-
ing two women `5 lakh each as compensa-
tion for humiliating and insensitive behavior
by the police. In this landmak case, DR RINI
JOHAR & ANR V STATE OF MP & ORS,
the apex court rebuked the cyber cell of the
Bhopal police department for “seriously jeop-
ardizing” the dignity of the two women, one a
doctor, the other a practicing advocate.
According to a summary of the case pub-
lished in Manupatra, the two petitioners fil-
ing the writ in the Supreme Court had
become embroiled in allegedly fraudulent
transactions, which were investigated by the
cyber cell in Bhopal. The cyber police arrest-
ed the petitioners from their residence in
Pune and transported them to Bhopal in a
cold-blooded manner, without first having
produced them before the local magistrate.
They were released on bail after more two
weeks in custody. (Thank the Lord for
small mercies)
The Court noted that the police had sever-
al options under the Information Act 2000,
each less drastic than aggressively arresting
the women; instead, it “experimented” with
the liberty of the petitioners. Moreover,
police conduct was especially egregious in
light of the civil nature of the dispute.
The cyber police became involved because
some of the transactions—purchase of imag-
ing equipment by one of the original com-
plainants for about `2,55,000—was conduct-
ed on email. Both the petitioners are
women—one a doctor pursuing higher stud-
ies in the US, who also runs an NGO to pro-
vide services for South Asian abused women
in the US; the other, a septuagenarian prac-
ticing in the district court at Pune for the last
36 years.
The purchaser later filed a complaint of
Justices Misra (far
right) and Singh
(right) must be
saluted for
roaring like
protective lions in
the portals of the
halls of justice
and awarding two
women `5 lakh
each as
compensation for
humiliating
behavior by the
police.
10 June 30, 2016

fraud on the basis of which the cyber police
headquarters in Bhopal (Orwell must be
turning in his grave) made out an FIR under
Section 420 and 34 of the Indian Penal Code
(IPC) and Section 66-D of the Information
Technology Act, 2000. Deepak Thakur, the
Deputy SP of the state cyber police, Bhopal,
passed the following order: “Cyber state
police having registered FIR 24/2012 under
S 420, Indian Penal Code and S 66 D of IT
Act, accused Rini Johar and Gulshan Johar
should be arrested and for that lady consta-
ble Ishrat Khan has been deputed with case
diary with address from where they are to be
found and arrested and it is ordered that they
be brought to Bhopal. In reference to which
you have been given possession of the said
case diary.”
The orders were reproduced in the
Supreme Court judgment on the writ “in
entirety as the same has immense relevance
to the relief sought for by the petitioners”.
(On 27.11.2012, the petitioners were arrested
from their residence at Pune.)
Why? Because the Supreme Court judg-
ment recorded: “Various assertions have
been made as regards the legality of the
arrest which cover the spectrum of non-pres-
ence of the witnesses at the time of arrest of
the petitioners, non-mentioning of date, and
arrest by unauthorized officers, etc. It is also
asserted after they were arrested, they were
taken from Pune to Bhopal in an unreserved
railway compartment marked—‘viklang’
(handicapped). Despite request, the petition-
er no. 2, an old lady, was not taken to a doc-
tor, and was compelled to lie on the cold floor
of the train compartment without any food
and water. Indignified treatment and the
humiliation faced by the petitioners have
been mentioned in great detail. On
28.11.2012, they were produced before the
learned magistrate at Bhopal and the peti-
tioner no. 2 was enlarged on bail after being
in custody for about 17 days and the petition-
er no.1 was released after more than three
weeks. There is allegation that they were
forced to pay `5 lakh to respondent no.3,
Deepak Thakur, Dy. S.P. Cyber Cell, Bhopal.
On 18.12.2012, chargesheet was filed and
thereafter a petition under Section 482 CrPC
has been filed before the High Court for
quashment of the FIR. At this stage, it is per-
tinent to state that on 19.2.2015 the petition-
ers filed an application for discharge and the
learned magistrate passed an order discharg-
ing the petitioners in respect of the offence
punishable under Section 66-D of the Act.
However, learned magistrate has opined that
there is prima facie case for the offence pun-
ishable under Section 66-A(b) of the Act read
with Section 420 and 34 of the IPC.”
In this landmak
case, the apex
court rebuked
the cyber cell of
the Bhopal police
department
for “seriously
jeopardizing”
the dignity of
the two women,
one a doctor,
the other a
practicing
advocate.Anil Shakya

Without delving too deeply into the mer-
its of the details, the Supreme Court
observed that ordinarily, it would have asked
the petitioners to pursue their remedy before
the high court. What the judges found per-
turbing was that the petitioners “agonizingly
submitted that this Court should look into
the manner in which they have been arrest-
ed, how the norms fixed by this Court have
been flagrantly violated and how their digni-
ty has been sullied permitting the atrocities
to reign. It was urged that if this Court is
prima facie satisfied that violations are
absolutely impermissible in law, they would
be entitled to compensation. That apart, it
was contended that no case is made out
against them and the order of discharge is
wholly unsustainable.”
The Supreme Court appointed Sunil
Fernandes as amicus curiae to assist in the
case. During official inquiries conducted into
allegations of money having been paid to the
Deputy SP, the lady constable Ishrat Praveen
Khan stated: “When I received the order, I
requested DSP Shri Deepak Thakur that I
was not in the District Police Force. I do not
have any knowledge about IPC/CrPC/Police
Regulation/Police Act and Evidence Act, IT
Act as I have not obtained any training in
Police Training School, nor do I have any
knowledge in this regard, nor do I have any
knowledge to fill up the seizure memo and
arrest memo… Even after the request, DSP
Shri Deepak Thakur asked in strict word that
I must follow the order. The duty certificate
was granted to me on 26.11.2012, on which
Report No.567 time 16.30 was registered, in
which there are clear directions. In compli-
ance with this order, we reached Kondwa
Police Station in Pune Maharashtra on
27.11.2012 with my team and two constables
and one woman constable were sent to assist
us from there. The persons of the police sta-
tion Kondwa came to know reaching Lulla
Nagar that the said area does not fall under
their police station area so the police of
Kondwa phoning Banwari Police Station got
to bring the force for help Banwari Police
Station. I had given the written application
in PS Banwari. The entire team reached the
house of Rini Johar and one laptop of Dell
Company and one data card of Reliance
Company were seized. Rini Johar called her
mother Gulshan Johar from the Court fur-
nishing information to her about her custody.
Thereafter, Smt Rini Johar had called up the
Inspector General of Police, State Cyber
Police Shri Anil Kumar Gupta. I and my
team had taken Smt Rini Johar and Smt
Gulshan in our custody. I and Constable Miss
Hemlata Jharbare conduced robe search of
Smt Rini Johar and Smt Gulshan Johar.
Nothing was found on their body.”
In summary, the disputed allegation
The police personnel carrying out
the arrest and handling the interroga-
tion of the arrestee should bear accu-
rate, visible and clear identification
and name tags with their designations.
The particulars of all such police
personnel who handle interrogation of
the arrestee must be recorded in
a register.
That the police officer carrying out
the arrest of the arrestee shall prepare
a memo of arrest at the time of arrest
and such memo shall be attested by
at least one witness, who may either
be a member of the family of the
arrestee or a respectable person of
the locality from where the arrest is
made. It shall also be countersigned
by the arrestee and shall contain the
time and date of arrest.
A person who has been arrested or
detained and is being held in custody
in a police station or interrogation cen-
tre or other lock-up, shall be entitled to
have one friend or relative or other per-
son known to him or having interest 3
(1997) 1 SCC 416 4 (1993) 2 SCC 746
5 (1995) 4 SCC 262 in his welfare
being informed, as soon as practica-
ble, that he has been arrested and is
being detained at the particular place,
unless the attesting witness of the
memo of arrest is himself such a
friend or a relative of the arrestee.
The time, place of arrest and venue
of custody of an arrestee must be noti-
WhatTheCourts
HaveDecreed
“No arrest should
be made without
a reasonable sat-
isfaction reached
after some inves-
tigation as to the
genuineness and
bona fides of a
complaint and a
reasonable belief
both as to the
person’s
complicity and
even so as to the
need to effect
arrest.”
—The Supreme Court
judgment
12 June 30, 2016

made against Ms Rini Johar relates to the
non-delivery of goods after payment has
been received—a case related to the alleged
cheating between two persons in respect of
sale and purchase of goods. The maximum
sentence in Section 420 is a period up to 7
years and similarly, when the reasons men-
tioned in Section 41 (1)(B) are not found, the
suspects of the crime should be made to
appear for interrogation in the investigation
issuing notice to them.
The late Justice Krishna Iyer has held
in Jolly George Varghese v Bank of Cochin
that “no one shall be imprisoned merely on
the ground of inability to fulfill a contractual
obligation”. The current judgment avers that
Section 41(2) of CrPC grants power to the
investigator to make an arrest if the suspect
does not appear for the investigation despite
the notice. But no reason for the arrest had
been mentioned in the case diary. No notice
had been sent to the elderly Gulshan Johar
(then aged about 70 years), nor had she
played any role in committing any offence.
Only a draft of `2.50 lakh had been deposited
in her account. “No binding ground has been
mentioned in respect of her arrest in the case
diary.” And again: “It has not been mentioned
anywhere in the arrest memo and case diary
that the information of the arrest of both
women was furnished to any of their relatives
and friends. It has become clear from the
statements that when both the women were
arrested physically, they were brought to PS
Banwari Pune, where the arrest memo
was prepared.”
Citing a plethora of blatant violations in
the treatment of the two accused women, the
Supreme Court judges cited portions of the
report filed by Fernandes, the amicus curiae.
“In Joginder Kumar v State of UP, while con-
sidering the misuse of police power of
fied by the police where the next friend
or relative of the arrestee lives outside
the district or town through the Legal Aid
Organisation in the District and the
police station of the area concerned tele-
graphically within a period of 8 to 12
hours after the arrest.
The person arrested must be made
aware of this right to have someone
informed of his arrest or detention as
soon as he is put under arrest or is
detained.
An entry must be made in the diary at
the place of detention regarding the
arrest of the person which shall also dis-
close the name of the next friend of the
person who has been informed of the
arrest and the names and particulars of
the police officials in whose custody the
arrestee is.
The arrestee should, where he so
requests, be also examined at the time
of his arrest and major and minor
injuries, if any present on his/her body,
must be recorded at that time. The
“Inspection Memo” must be signed both
by the arrestee and the police officer
effecting the arrest and its copy provided
to the arrestee.
The arrestee should be subjected to
medical examination by a trained doctor
every 48 hours during his detention in
custody by a doctor on the panel of
approved doctors appointed by Director,
Health Services of the State or Union
Territory concerned. Director, Health
Services should prepare such a panel for
all tehsils and districts as well.
Copies of all the documents including
the memo of arrest, referred to above,
should be sent to the Illaqa Magistrate
for his record.
The arrestee may be permitted to meet
his lawyer during interrogation, though
not throughout the interrogation.
A police control room should be pro-
vided at all district and State headquar-
ters, where information regarding the
arrest and the place of custody of the
arrestee shall be communicated by the
officer causing the arrest, within 12 hours
of effecting the arrest and at the police
control room it should be displayed on a
conspicuous notice board.”
SUDDEN DEATH
The Ishrat Jahan encounter
case raised uncomfortable
questions regarding abuse
of state power

arrest, it has been opined (1994 SCC 260) no
arrest can be made because it is lawful for the
police officer to do so. The existence of the
power to arrest is one thing. The justification
for the exercise of it is quite another… No
arrest should be made without a reasonable
satisfaction reached after some investigation
as to the genuineness and bona fides of a
complaint and a reasonable belief both as to
the person’s complicity and even so as to the
need to effect arrest. Denying a person of his
liberty is a serious matter.'' In this same case,
the apex court also voiced its concern regard-
ing complaints of human rights violations
before and after the arrests:
“The horizon of human rights is expand-
ing. At the same time, the crime rate is also
increasing. Of late, this Court has been receiv-
ing complaints about violations of human
rights because of indiscriminate arrests. How
are we to strike a balance between the two? A
realistic approach should be made in this
direction. The law of arrest is one of balancing
individual rights, liberties and privileges, on
the one hand, and individual duties, obliga-
tions and responsibilities on the other; of
weighing and balancing the rights, liberties
and privileges of the single individual and
those of individuals col-
lectively; of simply decid-
ing what is wanted and
where to put the weight
and the emphasis; of
deciding which comes
first — the criminal or
society, the law violator or
the law abider…”
This judgment was
followed by several
guidelines laid down by
the judiciary. In DK Basu
v State of WB, after
referring to the authori-
ties in the Joginder
Kumar case, Nilabati
Behera v State of Orissa,
and State of MP v
Shyamsunder Trivedi,
the Supreme Court laid
down certain rules to be
followed in cases of
arrest and detention till
legal provisions are made in that behalf as
preventive measures. (See box.)
The Supreme Court noted that
Fernandes, the amicus curiae, in a tabular
chart has pointed that none of the require-
ments had been complied with: “Various rea-
sons have been ascribed for the same. On a
scrutiny of enquiry report and the factual
assertions made, it is limpid that some of the
guidelines have been violated. It is strenu-
ously urged by Mr Fernandes that Section
66-A(b) of the Information Technology Act,
2000 provides maximum sentence of three
years and Section 420 CrPC stipulates sen-
tence of seven years and, therefore, it was
absolutely imperative on the part of the
arresting authority to comply with the proce-
dure postulated in Section 41-A of the Code
of Criminal Procedure. The Court in Arnesh
Kumar v State of Bihar, while dwelling upon
the concept of arrest, was compelled
to observe:
“'Arrest brings humiliation, curtails free-
dom and casts scars forever. Lawmakers
know it so also the police. There is a battle
between the lawmakers and the police and it
seems that the police has not learnt its les-
son: the lesson implicit and embodied in
EXTRAJUDICIAL KILLINGS?
The 2015 shootings of
20 so-called sandalwood
smugglers in Andhra Pradesh,
too, came under cloud for
possible human rights violation
UNI
14 June 30, 2016

CrPC. It has not come out of its colonial
image despite six decades of Independence, it
is largely considered as a tool of harassment,
oppression and surely not considered a
friend of public. The need for caution in exer-
cising the drastic power of arrest has been
emphasized time and again by the courts but
has not yielded desired result. Power to arrest
greatly contributes to its arrogance so also
the failure of the magistracy to check it. Not
only this, the power of arrest is one of the
lucrative sources of police corruption. The
attitude to arrest first and then proceed with
the rest is despicable. It has become a handy
tool to the police officers who lack sensitivity
or act with oblique motive.'
“Thereafter, the Court referred to Section
41 CrPC and analyzing the said provision,
opined that a person accused of an offence
punishable with imprisonment for a term
which may be less than seven years or which
may extend to seven years with or without
fine, cannot be arrested by the police officer
only on his satisfaction that such person had
committed the offence. It has been further
held that a (2014 8 SCC 273) police officer
before arrest, in such cases has to be further
satisfied that such arrest is necessary to pre-
vent such person from committing any fur-
ther offence; or for proper investigation of
the case; or to prevent the accused from
causing the evidence of the offence to disap-
pear; or tampering with such evidence in any
manner; or to prevent such person from
making any inducement, threat or promise to
a witness so as to dissuade him from disclos-
ing such facts to the court or the police offi-
cer; or unless such accused person is arrest-
ed, his presence in the court whenever
required cannot be ensured. These are the
conclusions, which one may reach based on
facts. Eventually, the Court was compelled to
state: ‘In pith and core, the police officer
before arrest must put a question to himself,
why arrest? Is it really required? What pur-
pose it will serve? What object it will
achieve? It is only after these questions are
addressed and one or the other conditions as
enumerated above is satisfied, the power of
arrest needs to be exercised. In fine, before
arrest first the police officers should have rea-
son to believe on the basis of information and
material that the accused has committed the
offence. Apart from this, the police officer has
to be satisfied further that the arrest is neces-
sary for one or the more purposes envisaged
by sub-clauses (a) to (e) of clause (1) of
Section 41 CrPC.’” (See Box.)
In the case at hand, the judges said, there
has been violation of Article 21 and the peti-
tioners were compelled to face humiliation.
“They have been treated with an attitude of
insensibility. Not only there are violation
GUILTY UNTIL PROVEN
INNOCENT
The Bhopal Police will now
pay for its insensitive conduct
towards the Pune doc;
(bottom) rights of undertrials
are routinely ignored

of guidelines issued in the case of DK Basu
(supra), there are also flagrant violation of
mandate of law enshrined under Section 41
and Section 41-A of CrPC. The investigating
officers in no circumstances can flout the law
with brazen proclivity. In such a situation,
the public law remedy which has been postu-
lated in Nilawati Behra (supra), Sube Singh v
State of Haryana, Hardeep Singh v State of
MP10, 9 (2006) 3 SCC 178 10 (2012) 1 SCC
748 24 comes into play. The constitutional
courts taking note of suffering and humilia-
tion are entitled to grant compensation. That
has been regarded as a redeeming feature. In
the case at hand, taking into consideration
the totality of facts and circumstances, we
think it appropriate to grant a sum of
`5,00,000/- (rupees five lakhs only) towards
compensation to each of the petitioners to be
paid by the State of MP within three months
hence. It will be open to the State to proceed
against the erring officials, if so advised. The
controversy does not end here. Mr
Fernandes, learned Amicus Curiae would
urge that it was a case for discharge but the
trial court failed to appreciate the factual
matrix in proper perspective. As the matter
remained pending in this court for some
time, and we had dealt with other aspects, we
thought it apt to hear the learned counsel for
the aspect of continuance of the criminal
prosecution. We have narrated the facts at
the beginning. The learned magistrate by
order dated 19.2.2015 has found existence of
prima facie case for the offences punishable
under Section 420 IPC and Section 66-A(b)
of I.T. Act, 2000 25 read with Section 34
IPC. It is submitted by Mr Fernandes that
Section 66-A of the IT Act, 2000 is not appli-
cable. The submission need not detain us any
further, for Section 66-A of the IT Act, 2000
has been struck down in its entirety being
violative of Article 19(1)(a) and not saved
under Article 19(2) in Shreya Singhal v
Union of India. The only offence, therefore,
that remains is Section 420 IPC. The learned
Magistrate has recorded a finding that there
has been no impersonation. However, he has
opined that there are some material to show
that the petitioners had intention to cheat.
J
ustices Mishra and Singh concluded
that there had been numerous viola-
tions in the arrest, and seizure:
“Circumstances in no case justify the
manner in which the petitioners were
treated. In such a situation, we are
inclined to think that the dignity of the
petitioners, a doctor and a practicing
advocate has been seriously jeopard-
ized. Dignity, as has been held in Charu
Khurana v Union of India, is the quintes-
sential quality of a personality, for it is a
highly cherished value. It is also clear
that liberty of the petitioner was curtailed
in violation of law. The freedom of an
individual has its sanctity. When the indi-
vidual liberty is curtailed in an unlawful
manner, the victim is likely to feel more
anguished, agonized, shaken, perturbed,
disillusioned and emotionally torn. It is an
assault on his/her identity. The said iden-
tity is sacrosanct under the Constitution.
Therefore, for curtailment of liberty, requi-
site norms are to be followed. Fidelity to
statutory safeguards instil faith of the col-
lective in the system. It does not require
wisdom of a seer to visualize that for
some invisible reason, an attempt has
been made to corrode the (2015) 1 SCC
192 procedural safeguards which are
meant to sustain the sanguinity of liberty.
The investigating agency, as it seems,
has put its sense of accountability to law
on the ventilator. The two ladies have
been arrested without following the pro-
cedure and put in the compartment of a
train without being produced before the
local Magistrate from Pune to Bhopal.
One need not be Argus—eyed to per-
ceive the same. Its visibility is as clear as
the cloudless noon day. It would not be
erroneous to say that the enthusiastic
investigating agency had totally forgotten
the golden words of Benjamin Disraeli: 'I
repeat… that all power is a trust—that
we are accountable for its exercise—that,
from the people and for the people, all
springs and all must exist.' We are com-
pelled to say so as liberty which is basi-
cally the splendor of beauty of life and
InDefence
ofLiberty
Benjamin Disraeli
16 June 30, 2016

On a perusal of the FIR, it is clear to us
that the dispute is purely of a civil
nature, but a maladroit effort has been
made to give it a criminal colour. In
Devendra v State of UP it has been held
thus: 'it is now well settled that the High
Court ordinarily would exercise its
jurisdiction under Section 482 of the
Code of Criminal Procedure if the alle-
gations made in the first information
report, even if given face value and
taken to be correct in their entirety, do
not make out any offence. When the
allegations made in the first informa-
tion report or the evidences collected during
investigation do not satisfy the ingredients of
an offence, the superior courts would not
encourage harassment of a person in a crim-
inal court for nothing.'
Ïn the present case, it can be stated with
certitude that no ingredient of Section 420
IPC is remotely attracted. Even if it is a
wrong, the complainant has to take recourse
to civil action. The case in hand does not fall
in the categories where cognizance of the
offence can be taken by the court and the
accused can be asked to face trial. In our con-
sidered opinion, the entire case projects a
civil dispute and nothing else. Therefore,
invoking the principle laid down in State of
Haryana v Bhajan Lal, we quash the proceed-
ings initiated at the instance of the 8th
respondent and set aside the order negativ-
ing the prayer for discharge of the accused
persons. The prosecution initiated against
the petitioners stands quashed.”
bliss of growth, cannot be allowed to be
frozen in such a contrived winter. That
would tantamount to comatosing of liber-
ty which is the strongest pillar of democ-
racy. Having held thus, we shall proceed
to the facet of grant of compensation.
The officers of the State had played with
the liberty of the petitioners and, in a way,
experimented with it. Law does not coun-
tenance such kind of experiments as that
causes trauma and pain. In Mehmood
Nayyar Azam v State of Chhattisgarh,
while dealing with the harassment in cus-
tody, deliberating on the concept of
harassment, the Court stated thus: 'At
this juncture, it becomes absolutely nec-
essary to appreciate what is meant by
the term harassment. In P Ramanatha
Aiyar’s Law Lexicon, 2nd Edn., the term
harass has been defined thus:
“Harass.—‘Injure’ and ‘injury’ are words
having numerous and comprehensive
popular meanings, as well as having a
legal import. A line may be drawn
between these words and the word
‘harass’, excluding the latter from being
comprehended within the word ‘injure’ or
‘injury’. The synonyms of ‘harass’ are: to
weary, tire, perplex, distress tease, vex,
molest, trouble, disturb. They all have
relation to mental annoyance, and a trou-
bling of the spirit. The term harassment in
its connotative expanse includes torment
and vexation. The term torture also
engulfs the concept of torment. The word
torture in its denotative concept includes
mental and psychological harassment.
The accused in custody can be put
under tremendous psychological pres-
sure by cruel, inhuman and degrading
treatment.'”
Referring to the current case, in this
context, the judges cited a precedent
from the Supreme Court that “The
majesty of law protects the dignity of a
citizen in a society governed by law. It
cannot be forgotten that the welfare State
is governed by the rule of law which has
paramountcy. It has been said by
Edward Biggon 'the laws of a nation form
the most instructive portion of its history'.
The Constitution as the organic law of the
land has unfolded itself in a manifold
manner like a living organism in the vari-
ous decisions of the court about the
rights of a person under Article 21 of the
Constitution of India. When citizenry
rights are sometimes dashed against
and pushed back by the members of City
Halls, there has to be a rebound and
when the rebound takes place, Article 21
of the Constitution springs up to action
as a protector.”
IL
NO JUSTICE FOR
DEPRIVED
Unemployed teachers being
rounded up in Lucknow in
the wake of a controversy
over the holding of Teachers
Eligibility Test

SUPREME COURT
The Supreme Court reserved its judgment in the
disproportionate assets case involving Tamil Nadu
Chief Minister Jayalalithaa and others. The Karnataka
government in a petition had challenged the May
2015 decision of the Karnataka High Court, which
had acquitted all of them. Besides Jayalalithaa, others
acquitted were her close aide Sasikala, J Elavarasi
and VN Sudhakaran.
The apex court asked all respondents to file their
written submissions by June 10.
Earlier, in its last hearing, the apex court had
noted that merely having assets which are more than
the known sources of income is not an offense as
per law. It had laid the onus on the Karnataka govern-
ment to prove that Jayalalithaa had acquired assets
through money gotten through illegal means, in order
to establish that she was guilty.
Jayalalithaa was accused of amassing wealth
disproportionate to her known sources of income
while she was CM from 1991 to 1996.
The Karnataka government had pleaded before
the apex court that there were enough grounds for
holding Jayalalithaa and others guilty in the case as
the High court had “committed error” in computing
her assets and all evidence had not been examined
in an unbiased manner.
Before the case came up in the Karnataka
High Court, a special court in September 2014
had held all of them guilty. They were sentenced
to four years’ jail and even asked to pay a fine of
`100 crore.
The verdict had wide ramifications on
Jayalalithaa’s political career. She was forced to
step down as chief minister. But later, the relief
granted to her by the Karnataka High Court enabled
her to get back the CM’s chair.
Judgment withheld in Jaya case
Sukhdev Singh Namdhari, the co-
accused in the Ponty Chadha mur-
der case, was refused bail by the apex
court. The Court observed that the
charges slapped against him were too
serious for granting bail, even though
Namdhari pleaded he was unwell.
The apex court was not happy that
the trial court had earlier allowed him
to go on interim bail several times on
medical grounds when his regular bail
came up in the Delhi High Court. The
High Court had turned down his plea.
Namdhari is allegedly the main
conspirator in the killing of liquor
baron Ponty Chadha and his brother
Hardeep in a shootout at a farmhouse
in south Delhi’s Chhatarpur in
November 2012. He was later
removed from the post of Uttarakhand
minorities panel chief.
The trial court, which is hearing
evidence from the prosecution in the
case, had framed charges against all
the 21 accused, including Namdhari.
His interim bail was struck down
by the trial court in April. He is cur-
rently in jail.
No bail for Namdhari
18 June 30, 2016

—Compiled by Prabir Biswas, Illustrations: UdayShankar
CJIasksgovernmenttoperform
Fending off accusations
that the judiciary was
intruding into the domain
of the executive, Chief
Justice of India (CJI) TS
Thakur recently said that
the judiciary was com-
pelled to do so.
He pointed out that the
courts interfered in gov-
ernment matters only
when it did not function
efficiently and sincerely. It
was the constitutional obli-
gation of the courts to
barge in when government
did not do its job properly,
he observed.
The comments of CJI
to a private news channel
in Srinagar assume signifi-
cance in the light of recent
statements of Union
Finance Minister Arun
Jaitley in the Rajya Sabha.
Jaitley had said that the
judiciary was on its way to
destroy the edifice of the
legislature.
Asking the government
to come up with a litiga-
tion policy so that people
do not have to rush to the
courts to protect their
rights, the CJI advised it to
stop blaming others.
The apex court did not
take up the plea advo-
cate Farha Faiz that it
should ask the All India
Muslim Personal Law Board
(AIMPLB) to stop unleash-
ing “misleading messages”
on Muslim women’s rights
to marriage and divorce. It
also conveyed to Faiz that
her complaint of a “media
trial” on the issue could not
be addressed as there was
no way it could be stopped.
Faiz wanted the apex
court to stop AIMPLB till
the hearing on the suo
motu writ petition on the
issue was complete. On the
contrary, the Court asked
her to file her response to
the writ petition rather than
coming to the court with a
fresh request.
Incidentally, Faiz is a
party to the petition.
No bail for
Matang Sinh
Plea on Muslim
Women’s rights
rejected
The Supreme Court
dismissed the plea
of Matang Sinh’s coun-
sel that the former cen-
tral minister be granted
bail for treating his liver
as his condition was
precarious. Sinh has
been arrested by the
CBI for his involvement
in the Saradha scam.
The apex court
asked him to approach
the Calcutta High Court
for the relief sought.
It pointed out that a
court order was
already in place on
granting of all medical
facilities to Sinh.
The apex court had
earlier in November
refused to grant bail to
Sinh on the ground that
the Saradha probe was
still on.
Actfastonthreats
Upon being told that aides
of Asaram Bapu were
openly issuing threats to wit-
nesses, the Supreme Court
blamed the Rajasthan govern-
ment for its inaction. The self-
styled godman has been
accused of sexually assaulting
a teenage girl in his ashram in
Jodhpur.
The Court wanted to know
what steps the Rajasthan gov-
ernment had taken after intelli-
gence inputs revealed that
witnesses and police officials
in the case were being intimi-
dated. It pointed out that it
was the duty of the state to
maintain law and order. The
Court felt that merely register-
ing of an FIR on intelligent
reports was not enough and
the state should have moved
the high court revoking the
bail orders of four aides of
Asaram. It can’t remain a
mute spectator to the whole
issue, the court observed.
It asked the state govern-
ment to do so in case there
are fresh instances of threats
by aides of Asaram.
Advocate Kamini Jaiswal,
who is fighting for the teenag-
er, brought the matter to the
court’s notice.

COURTS/ Madras High Court
Recently, the High Court amended Section 34 (1)
of the Advocates Act to debar those advocates
guilty of professional misconduct from practicing
By R Ramasubramanian in Chennai
Cracking
Downon
ErrantLawyers
L
AWYERS in Tamil Nadu
are up in arms against a
move by the Madras High
Court (MHC). The reason
is the High Court’s deci-
sion to debar advocates
for professional miscon-
duct. This power was hitherto vested with
the Bar Council of India and the Tamil Nadu
Bar Council.
However, unlike previous tussles between
the bar and the bench, this time, the advo-
cates’ community is vertically divided on this
issue. While a section of lawyers, especially
those who owe allegiance to the Madras High
Court Advocates’ Association (MHAA), vehe-
mently opposed this move, another section
welcomed it.
ENOUGH IS ENOUGH?
The High Court’s unprecedented move took
place on May 27. The next day, almost all
national English dailies from Chennai
reported that the Rules under Section 34 (1)
of the Advocates Act had been amended to
debar an advocate in the light of unruly
scenes last year both in the Madurai bench of
the MHC and in the parent premises in
Chennai. Going a step further, the MHC has
also nudged the state government to issue a
gazette notification in this regard.
As per the amended rules which come
into force with immediate effect, a lawyer is
said to have indulged in professional miscon-
duct when:
He or she is found to have accepted money
in the name of a judge or on the pretext of
influencing a judge
When he is found to have tampered with
the court record or court order
When an advocate browbeats and/or abus-
es a judge or judicial officer
When an advocate who is found to have
sent or spreads unfounded and unsubstanti-
ated allegationspetitions against a judicial
officer or a judge to the Supreme Court
When an advocate actively participates in a
procession inside the court campus and/or is
involved in gherao inside the court hall or
holds placards inside the court hall
When an advocate appears in court under
the influence of alcohol.
20 June 30, 2016

RULE OF LAW?
Lawyers protest in
Chennai on June 6
against a new
amendment to
Section 34 (1) of the
Advocates Act by the
Madras High Court
The amendment says that the unruly law-
yer shall be debarred from appearing before
the High Court or subordinate courts perma-
nently or for such period as the court may
think fit. The registrar-general shall report
the same to the Bar Council of Tamil Nadu.
The same holds good for an unruly lawyer
in a principal sessions court as the principal
sessions judge (PSJ) can take the same action
as far as his or her appearance is concerned
in the sessions courts and all the subordinate
courts falling under the purview of the PSJ.
The rest of the subordinate courts have been
vested with the power to recommend to the
PSJ to debar a delinquent advocate.
LAWYERS’ PROTEST
Angered by this new development, a few
thousand lawyers took out a procession in
Chennai on June 6, demanding that the
MHC withdraw its new amendment. The
procession was, to a large extent, organized
by the MHAA. “The High Court has in-
fringed upon the powers of the Bar Council.
The notification is a violation of Section 35
(1) of the Advocate Act, which empowers the
Bar Council to initiate actions against erring
advocates. This amendment has been done
with the intention of scaring the advocate
community,” said PS Amal Raj, vice-presi-
dent of the Bar Council of Tamil Nadu and
Puducherry.
Echoing these sentiments, RC Paul Kan-
agaraj, president, MHAA, said: “I am opp-
osed to Section X in 14-A, which prevents
advocates from staging an agitation on the
campus. Advocates will not go to the corri-
dors and stage demonstrations. However, we
have the right to stage agitations in the cam-
pus. Likewise, advocates can lodge com-
plaints against a judge and it is up to the
High Court to take cognizance of it....”
But there were several jurists, including
retired High Court judges, who welcomed
Some lawyers staged a dharna along
with their family members—including a
child—inside the court in 2015 demand-
ing Tamil as the Court’s official language.
Courtesy: Lens

these new amendments. “In 2009, in the RK
Anand case, the Supreme Court directed all
High Courts in the country to frame rules
under the Advocates Act within two months.
It is after a lapse of nearly seven years that
the MHC has acted on it,” said K Chandru, a
retired judge of the MHC. He added:
“Following a series of unpleasant incidents
last year, the MHC ordered CISF security on
the campus and felt that it should frame rules
by amending Section 34-1 of the Act to take
action against erring lawyers. By this amend-
ment, the MHC has not violated the law and
the rules are framed as per direction of the
Supreme Court. The rules do not interfere
with the powers of the Bar Council.”
A large section of unbiased lawyers too
welcomed the new amendment. “This is what
we deserve because the Bar Council was very
ineffective in dealing with some of our erring
colleagues. Those who adhere to the law and
decent behavior have no reason to be appre-
hensive about this notification,” said Sudha
Ramalingam, one of the state’s leading
woman advocates.
CONSTANT HEADACHE
Normalcy was restored in the MHC just a
few months back after quite a bit of turmoil.
The trouble between the agitating lawyers
and the judges reached its peak last year
when a group of advocates with their family
members—including a child—entered the
court hall of the chief justice and staged a
day-long dharna. They were demanding that
Tamil be made the official language of the
Court. Repeated protests and processions
inside the court premises became a constant
headache for the bench.
In October last year, a division bench
headed by Justice Sanjay Kishan Kaul direct-
ed the center that the High Court campus be
brought under the control of the Central
Industrial Security Force (CISF). Accor-
dingly, MHC was brought under CISF cover
from November 2015. In fact, the Supreme
Court itself opined in August 2015 that jud-
ges were working under constant fear in the
MHC as they did not know when a group of
lawyers would barge into their court halls.
Meanwhile, it was reported on June 8 that
Bar Council of India chairman Mannan
Kumar Mishra had taken a serious view of
the June 6 rally. Reports suggested that
Mishra had instructed the Tamil Nadu Bar
Council to initiate action against those
responsible for rallies and boycotts.
It may be recalled that the BCI had sus-
pended 44 lawyers in Tamil Nadu for their
unruly behavior last year and this was sup-
posed to be a record number in the country.
Advocates are having a running battle with
judges in MHC for the past several years for
various reasons.
Sadly, it’s litigants who suffer the most
due to such court battles.
Justice K Chandru,
retired judge
He believes the MHC
has not violated the
law and framed the
rules as per SC’s
directions.
PS Amal Raj, VP, Bar
Council of Tamil Nadu
and Puducherry
He says the MHC
amended the rules to
scare away the
advocate community.
Justice Sanjay Kishan
Kaul, Madras HC
In October 2015, a
bench headed by him
directed the center to
bring the HC campus
under CISF.
Sudha Ramalingam,
advocate
She feels that the
Bar Council has
been ineffective in
dealing with
unruliness.
IL
COURTS/ Madras High Court
22 June 30, 2016

In a paradigm shift in the way children between 16 and
18 years are viewed by the judiciary in cases of
heinous offences, the Juvenile Justice Board (JJB) sent
a teenager to sessions court to be tried as an adult. He
was accused of killing Siddharth Sharma in north Delhi
after the car he was driving hit the man.
The JJB move is the first after the juvenile justice law
was amended by the government in January to ensure
that teenagers committing heinous offenses do not get
away with a lesser punishment. The board felt that the
offense was “heinous” and there was no reason to
believe that the boy was not aware of its gravity. It noted
that the boy tried to evade the law, did not provide any
assistance to the victim after the accident and even fled
from the scene. It concluded that the Delhi Police was
justified in slapping charges of culpable homicide not
amounting to murder.
If the sessions court agrees with the decision of the
JJB, the boy may go to jail for seven years or more, as
mandated by the new Juvenile Justice Act. The court, as
of now, has sought police response to the offender chal-
lenging the JJB order. The next hearing is on July 2.
The board arrived at its decision after closely looking
into the boy’s physical and mental condition and examin-
ing the points raised by the police. The report submitted
by the clinical psychologist also went against the teen-
ager. It said that he was in sound mental and physical
condition to commit such an offense.
The past record of the boy in breaking traffic rules
and driving dangerously also helped the board to nail
him. It observed that even in this case, the boy did not
heed warnings from his co-passengers in the car to
drive responsibly. The teenager, who turned 18 just four
days after the incident, is out on bail.
COURTS
Teenager to be tried as an adult
The suspended Janata Dal (United)
MLC, Manorama Devi, got relief
from the Patna High Court recently.
She was held guilty under the new
Bihar Excise (Amendment) Act, 2016,
after liquor bottles were found at her
home in Gaya during a raid conduct-
ed on the assumption that she was
harboring her son Rocky Yadav.
Yadav is accused of killing a
teenager, Aditya Sachdeva, for over-
taking his car in Gaya, and is under
arrest. The Gaya police has filed a
chargesheet against him in court.
The High Court, however, asked
Manorama to lend her full support to
the ongoing trial in the case.
Devi’s counsel argued that liquor
bottles were only recovered from her
home and she was not carrying them
and was not in physical possession
of them. He pleaded that Manorama
is a law-abiding person as she had
surrendered before the court.
On May 19, the additional chief
judicial magistrate court had rejected
her bail petition. Later, on May 27,
the Gaya district court too had turned
down her bail plea.
Devi surrendered before the Gaya
court on May 17 after she had gone
into hiding for a couple of days.
Manorama Devi gets bail
24 June 30, 2016

The chance of wrestler and
two-time Olympic medallist
Sushil Kumar representing India
at the Rio Olympics this year
ebbed as the Delhi High Court
rejected his plea for a selection
trial to decide who dons the
India cap. The Wrestling
Federation of India had already
selected another wrestler,
Narsingh Yadav, in the 78-kg
free style category. The
Olympic Games are slated to
be held in Rio de Janeiro,
Brazil in August.
Sushil had raised objections
to Yadav being given the green
signal. The Court, however, felt
that the decision of WFI to opt
for Yadav—as his current form
was better than Sushil—was
justified.
The fact that Sushil did not
take part in selection trials for
major tournaments yet partici-
pated in them was taken note
of by the court while dismiss-
ing his plea.
The wrestling federation
had claimed that Yadav got
the berth for Olympics by win-
ning the bronze medal in the
World Wrestling Championship,
last year.
The Court observed that
allowing a selection trial at this
stage might be detrimental to
the national interest as the
selected candidate may lose
focus and can even get injured.
— Compiled by Prabir Biswas; Illustrations: UdayShankar
Not satisfied with the
center’s submission
that a Delhi Police team
reaches a crime scene in
10 minutes, the Delhi High
Court observed that the
agility of the police should
be like a pizza boy. It noted
that the pizza boy delivers
food earlier than the sched-
uled time.
The center had made
the claim in the context of
providing safety and secu-
rity to women in Delhi.
The High Court ruled
that the police should arrive
at a crime scene in less
than 10 minutes. This infor-
mation should be properly
disseminated among the
public so that they have
confidence in the ability of
the police, the court said.
Delhi Police was asked
to file its response on
the concerns raised in an
affidavit.
The Court also made
another significant obser-
vation related to the gather-
ing of crucial evidence
from the crime scene. It
said that most often, there
is no clinching proof to nail
the accused who manage
to escape from law.
Stressing on foolproof
crime detection, the Court
ruled that the team visiting
the site should be armed
with “experts”, including
someone from the forensic
department.
Delhi Police must be
nimble-footed
One elephant for
Sabarimala festival
Only one elephant will now be used
during the annual festival, Mandala-
Makaravilakku, at the Lord Ayyappa
Temple in Sabarimala, the Kerala High
Court ruled. It asked the Travancore
Devaswom Board to follow the diktat.
The board administers more than 1,000
temples in the state.
Thumbs down for Sushil

E
VER since Prime Minister
Narendra Modi embarked
on his five-nation tour on
June 4, the buzz has been
about things nuclear. The
headlines have been domi-
nated by India garnering
support from Switzerland, Mexico and the US
and inching closer to becoming a member of
the critical Nuclear Suppliers Group. Or of
being finally welcomed into the prestigious
Missile Technology Control Regime (MTCR)
club, thereby ending India’s nuclear isolation
following the Pokhran-I tests in 1974.
Underpinning all these nuclear and
defence “breakthroughs” has been India’s
DIPLOMACY/Indo-US Ties
As India inches closer to becoming a member
of the Nuclear Suppliers Group, it’ll end the
isolation that set in after Pokhran-I. And Modi’s
recent US visit will have a lot to do with it
By Ajith Pillai
Nuclear
Buzz
Ahead? growing closeness to the US. Washington has
effusively declared New Delhi as its “major
defence partner” in technology transfer as
well as a “priority partner in the Asia-Pacific
region”. But even as the prime minister’s visit
and the gains made are being toasted, there
are critics who point out that in the euphoria
of the Hindi-Amriki-bhai-bhai celebrations,
we must not be blind to the fact that the US
always builds friendships with its own inter-
ests in mind.
To get a better understanding of the con-
tours of some of the complexities and coun-
tervailing factors prevailing in the nuclear
and military breakthroughs achieved, here
are a few pointers that will place events dur-
ing the PM’s latest travels abroad in context:
The Nuclear Matrix and the IAEA: When
the US dropped uranium-235 and plutoni-
um-239 bombs on Hiroshima and Nagasaki
respectively in August 1945, it abruptly put an
end to the Second World War. But it also
demonstrated the unimaginable, horrific
power locked within the atom.
In the aftermath of the nuclear bombings
26 June 30, 2016

and its destructive fallout in Japan, the inter-
national community veered around to an
informal consensus that the use of nuclear
weapons must be stopped. However, it was
also agreed that harnessing nuclear power
for peaceful purposes was laden with posi-
tives and needed to be explored.
It was President Eisenhower’s “Atoms for
Peace” doctrine presented to the UN General
Assembly in 1953 that set the ball rolling.
Four years later, the International Atomic
Energy Agency (IAEA) was set up by a unan-
imous UN resolution. The new agency’s role
was to “help nations develop nuclear energy
for peaceful purposes”. It would also oversee
safeguard arrangements to ensure that the
“commitment to use nuclear materials and
facilities exclusively for peaceful purposes”
was honoured by member nations.
Nuclear Non-Proliferation Treaty (NPT):
It became operational in 1970 and came
within the ambit of the IAEA. The NPT clas-
sified nations into two categories—nuclear-
weapon states (NWS) and non-nuclear
weapon states (NNWS). The former com-
prised the US, Russia, China, France and the
UK. These were nations which already had
nuclear weapons and had tested them but
committed themselves to work towards com-
plete disarmament. The NNWS agreed not
to develop or acquire nuclear weapons.
The NPT was signed by 191 member
nations of the UN although North Korea
withdrew from it in 2003. India, Pakistan,
Israel and South Sudan are the four countries
which have not signed the NPT. India,
Pakistan and North Korea have declared they
possess nuclear weapons. Israel is known to
possess nuclear weapons capability.
India has consistently refused to sign the
NPT because it is biased in favor of nuclear
weapons states. While they are allowed to
FAST AND FURIOUS
Modi meets Obama at the
Oval Office, White House;
(near left) at the official
residence of Enrique Peña
Nieto, Mexican president
Critics point out that in the euphoria of the
Hindi-Amriki-bhai-bhai celebrations, we
must remember that the US always builds
friendships with its own interests in mind.

keep their weapons with no fixed time frame
for disarmament, the non-nuclear weapon
states had to give a commitment not to devel-
op or acquire weapons. India’s stated posi-
tion is that it will only sign the NPT when the
US, Russia, China, France and UK disarm
their nuclear weapons.
Similarly, India has not agreed to go along
with the Comprehensive Nuclear Test Ban
Treaty (CTBT) which bans all nuclear explo-
sions for military or civilian purposes. It was
adopted by the UN General Assembly in
1996 but is still not operational. Eight coun-
tries, including India have refused to sign it.
India’s objection to the CTBT in a nutshell
was that it had its own security concerns vis-
a-vis Pakistan and China and that the Treaty
was not a disarmament measure. It allowed
the nuclear powers to improve the capability
of their weapons without conducting actual
tests or explosions.
The Nuclear Suppliers Group (NSG): It
was formed in the wake of India conducting
its first nuclear test in May 1974 which
proved that non-weapons nuclear technology
could be improvised to develop bombs.
Signatories of NPT decided that trade of
nuclear technology and material must be
limited so that it is used for peaceful purpos-
es alone. As of now, there are 48 members in
the NSG. It is, at times, referred to as a trade
cartel which controls the trade of fissile
material for peaceful purposes. By gaining
access to the club, India will have ready
access to nuclear material to fuel its energy
goals. But there is a catch. Since India is not
a signatory to the NPT, it does not qualify,
although the US has been pushing for its
entry into NSG ever since the ratification of
the Indo-US civilian nuclear deal in 2008.
All 48 members of the NSG must neces-
sarily approve of India’s entry. China has so
far been vehemently opposed to India’s inclu-
sion. Austria, Norway, Ireland and New
Zealand have also been expressing their
apprehensions. On his recent visit, Prime
Minister Modi won the support of
Switzerland and Mexico. But China can still
be the stumbling block.
US, India and NSG: India’s entry into the
NSG is a priority for the US because of busi-
ness interests. Once India becomes a mem-
India has refused
to sign the NPT
because it is
biased in favor of
nuclear weapons
states. India’s stat-
ed position is it will
sign it only when
the US, Russia,
China, France and
UK disarm their
nuclear weapons.
GROWING PRESENCE
India-made Brahmos is
soon set to hit the global
market, (bottom) Modi with
Japanese prime minister
Shinzo Abe at Nuclear
Security Summit 2016
DIPLOMACY/Indo-US Ties
28 June 30, 2016

ber, it can access nuclear material and this
could help it set up nuclear power plants
across the country. This in turn would open
the doors for US companies to sell reactors to
India. The joint statement released during
Modi’s visit to the US speaks of the intention
to make the construction of six reactors by
the Westinghouse Corporation on stream
by 2017.
It has been alleged by the anti-nuclear
lobby in India that an agreement between
the Nuclear Power Corporation of India
Limited and Westinghouse has been virtually
sealed although not made public “as it would
expose the absence of liability provisions and
the exorbitant cost of this project”.
Missile Technology Control Regime
(MTCR): India has become the 35th mem-
ber of this voluntary partnership of nations
set up in 1987 to prevent “the proliferation of
missile and unmanned aerial vehicle (UAV)
technology”. While MTCR guidelines are not
binding and only notionally restricts trade
between member and non-member coun-
tries, it also justifies the sale of equipment to
a country which is a member of the group.
Membership of the MTCR means India
will have access to international missile tech-
nology while it will be free to also enter the
international export market as it will be
regarded as MTCR-compliant. After MTCR
confirmed India’s membership while Modi
was on his US tour, Washington and New
Delhi are expected to fast-track their discus-
sion on sale of predator series of unmanned
aircraft for the Indian military.
Interestingly, Italy had blocked India’s
entry into the missile club in protest against
the arrest of two Italian marines suspected of
shooting an Indian fisherman off the Kerala
coast. Last month, the second of the marines
who was in India’s custody, was sent home. It
is suggested in some quarters that this ges-
ture may have softened Rome’s stand.
Indo-US Defence Partnership: The
strengthened ties between the two nations
means the following: India has joined the US
axis against China in the Asia-Pacific region.
It will mean enhanced access to the Indian
defence import market for US arms manu-
facturers. There is already some talk about
procuring fighter aircrafts from America.
Indian dependency on US arms is expected
to grow in the years to come. Will India
become an exclusive market for the US
to exploit?
On the other hand, it would harden
China’s stand against India and perhaps
bring it closer to Pakistan. This presents itself
with its own set of problems and dynamics as
India is also keen to maintain its trade links
with China.
The US trip was without doubt an event-
ful one. Modi received a warm welcome in
Washington and his meetings with US
President Barack Obama were conducted in
a blaze of publicity back home. Now that the
PM’s trip abroad is over, the time has come
for some deft diplomacy to take over as one
examines the US bear hug more objectively
and ties it up with what it implies for Sino-
Indian and Indo-Pak relations.
CLOSER TIES
US secretary of
state John Kerry
pays homage at
Hiroshima Peace
Memorial
Museum; New
Delhi let Italian
marine Salvatore
Girone (left) go
home which
softened Rome’s
stand on India’s
entry in MTCR
IL

T
HE Nuclear Suppliers Gro-
up (NSG) was set up as a
club of nuclear equipment
and fissile material suppli-
ers in the aftermath of
India’s 1974 nuclear test.
Members are admitted on
the basis of “consensus” and its working and
decisions are also taken on the basis of con-
sensus. This group has no international legal
basis and operates in the shadow of the for-
mal international arena. Its membership,
however, of all the Permanent Five members
of the Security Council, all major producers
and exporters of nuclear fissile materials,
leading technologically advanced European
nations, in addition to the US, Japan and
Australia, makes it the most powerful group
in the entire spectrum of nuclear commerce.
Consensus (see box) is a delightfully vague
concept, while its raison d’être is unques-
tioned in any committee-like structures and
in international organizations; it has never
been confused with unanimity. Unanimity is
obviously a very clear concept, not subject to
any differing interpretations. Likewise, the
concept of a veto is legally and diplomatically
DIPLOMACY/ Column/Yogesh M Tiwari
There is no case for blocking India’s
membership to the NSG. China’s
objections should not be binding
Consensusisa
DelightfullyVague
Concept
30 June 30, 2016

unambiguous. Therefore, a natural question
is, why a single member can block the deci-
sions of the remaining overwhelming major-
ity or a minority group of nations. If this idea
is carried to its logical extreme, a single
member can theoretically hold up the over-
whelming majority’s decisions or consensus.
All work in the international organizations
would come to a complete standstill!
India has been trying to enter NSG from
2008 officially and, unofficially, has been
desirous of membership from before. India’s
position is that it meets the purported objec-
tives of the NSG, i.e. to prevent the prolifera-
tions of the nuclear weapons. India has been
described as the most perfect non-prolifera-
tor. India’s credentials have never been ques-
tioned unlike those of China and Pakistan, to
name only two. Pakistan, a technologically
backward country, became a nuclear power
through theft and subterfuge, in the full
knowledge of its theft by the entire P-5, the
so-called standard bearers of non-prolifera-
tion. The Non-Proliferation Treaty (NPT)
defines “nuclear weapon states” as those that
tested nuclear devices before January 1, 1967.
Hence no new “nuclear weapon state” can
come into being—surely a clear case of oli-
gopoly of the P-5. The vast majority of the
members of the International Atomic Energy
Agency (IAEA) were coerced into member-
ship, believing or being deceived into believ-
ing that the P-5 would undertake measures
for universal nuclear disarmament. Such a
culmination has not happened in the last
four decades. Even the beginnings of univer-
sal nuclear disarmament are an ever-reced-
ing mirage in the nuclear desert.
ALL-OUT EFFORT
(L-R) In his efforts to enlist
support of NSG, Prime
Minister Narendra Modi with
President of Mexico Enrique
Peaa Nieto
Modi at the House Chamber
prior to addressing the US
Congress in Washington
Irrespective of the outcome of the NSG
plenary meeting in Seoul, US and
France could just ignore the NSG and
proceed with their contracts.
Photos: UNI

I was the Permanent Representative of
India to the IAEA when India carried out
nuclear explosions in May 1998. The P-5
were enraged and introduced and endorsed a
strong resolution condemning India (and
Pakistan too). I pointed out strongly the
“original sin” of the NPT, that it was an unfair
treaty, imposing suffocating obligations on
the non-nuclear states, without the concomi-
tant obligations undertaken by the P-5.
In fact, using NPT, the US, France and
Great Britain had denied even the technology
and materials for peaceful uses of nuclear
energy to some nations (eg Iran) which was
the fundamental objective of the IAEA,
founded at the initiative of President Eisen-
hower of the US.
I was expecting a debate to take place,
when the P-5 took recourse to a device—guil-
lotine—calling for a vote on their resolution.
Obviously the P-5 could not rebut my argu-
ments. When the text was being deliberated,
the South African delegation proposed an
amendment (I was taken into confidence by
the South African leader of the delegation),
asking what steps had been taken by the P-5
towards universal nuclear disarmament. All
hell broke loose. The P-5 asked for an ad-
journment, which lasted for more than three
hours and came out at 2:00 am in the morn-
ing, withdrawing their names from sponsor-
ship of the resolution! How could they ask
themselves what steps they had taken when
they had not taken any steps at all?
M
any Indian commentators in the
media have described India as a
“pariah” state in the nuclear comi-
ty of nations and welcomed and vociferously
supported the Indo-US civil nuclear cooper-
ation agreement of 2005, saying that India’s
nuclear isolation would be over. The fact is
that though India was excluded from the
memberships of NSG, MTCR, Wassenaar
Arrangement and Australia Group, we were
treated with great respect in the IAEA, cer-
tainly during my tenure from beginning of
1997 to the end of 2000 and no major deci-
sions were taken without India’s support and
approval. There were a couple of occasions
when the US had to withdraw her proposals
when I argued against them and once when I
had to overcome Russian opposition to an
Indian proposal. When we could not reach
To argue that by admitting India to the
NSG would be to insult the non-
proliferation regime is nonsensical,
China being the biggest proliferator.
ALL-WEATHER FRIENDS?
(Above) Modi with US
President Barack Obama
during his recent US visit
DIPLOMACY/ Column
32 June 30, 2016

any consensus, the Russian delegation asked
for a vote and they lost by a big margin.
India’s objectives for NSG are clear—we
wish access to nuclear materials, nuclear
technology and to be in a position to export
our technology and assistance to other na-
tions for peaceful purposes—obviously.
The US has undertaken to make us a
member of the NSG and other nuclear and
technological regimes, like MTCR,
Wassenaar Arrangement and Australia
Group. I would like to think that they are
doing what they can and the current Chinese
opposition could not have been predicted in
view of Chi-na’s consent to the clean waiver
from the NSG in 2008. But what about the
reported opposition from Turkey, Austria,
New Zea-land, Ireland and others? Surely
they ought to be more amenable to joint
pressure from the US and India? While the
Chinese make much of not wanting to lose
face, this would not be the first time and
assuredly not the last time that this has hap-
pened to them, like the recent Chinese stand
on the UN terrorist designation.
The NSG held an extraordinary plenary
meeting in Vienna recently, where India
made more gains. The next NSG plenary will
take place in Seoul on June 23-24, a fortnight
from now. Only time will tell what will hap-
pen, though India has reasons to feel cau-
tiously optimistic, and in Prime Minister
Modi, we have a bold and courageous, even
charismatic leader who would not yield with-
out putting up a tough fight.
T
o argue that by admitting India to the
NSG would be to insult the non-pro-
liferation regime is nonsensical, with
China being the biggest proliferator after the
coming into being of the NPT, with Pakistan
not far behind.
The US Secretary of State, John Kerry,
has written a letter to the reluctant members
of the NSG, reportedly mentioning that India
has shown strong support for the objectives
of the NSG and the global nuclear non-pro-
liferating regime and is a like-minded state
deserving of NSG admission. What is also
reported in John Kerry’s letter is that “with
respect to other possible new members of the
NSG, Indian officials have stated that India
would take a merit-based approach to such
applications and would not be influenced by
extraneous regional issues.” (Shubhajit Roy
—Washington D.C. June 9—in the Indian
Express of 10 June 2016). This should, if
true, be able to largely counter China’s argu-
ments for admitting Pakistan.
This would also counter the specious ob-
jections of the hold-outs who oppose admit-
ting India, and say that if India is to be
admitted, it should be under the criteria that
apply equally to all states rather than
TROUBLESOME
DAYS
(L-R) India’s nuclear
test in Pokhran in
1998 had angered
the P-5 group;
The then Director
General of the IAEA
Mohamed El Baradei
had offered a
constructive solution

under a “tailor-made” solution for a US ally
(Indian Express, June 10). In other words
they are arguing that the “exceptions should
be made the rule”! Absurd logic, an oxy-
moron at best.
T
here is no requirement under the NSG
that member states should be mem-
bers of the NPT. An interesting sce-
nario would be of a vast majority expressing
support for India’s admission and affirming
that “consensus” is not unanimity and no
member has a veto, and letting the matter be
put to a vote (I’m not sure whether NSG has
a proviso for this under their informal rules,
but the very fact that they are informal
should permit them to introduce this). Let
China and other hold-outs record dissent.
Would they walk out? Would they resign
their membership in protest? I think not.
Incidentally, after the 1998 nuclear blast,
the then Director General of the IAEA (the
only international organization dealing with
nuclear matters of this nature) Mohamed El
Baradei offered India the safeguard agree-
ment as had been entered into by China with
IAEA. (In fact he gave me a copy of this). For
reasons unknown, the government of India
did not take up this offer. Had this offer been
accepted it would have meant de facto recog-
nition of India as a nuclear weapons state,
facilitating our access to groups like NSG etc.
Nuclear weapon states determine which
nuclear facilities should come under the
IAEA safeguard regime. This was not the
case with the Indo-US civil nuclear coopera-
tion deal in which the question of which
facilities would come under IAEA safeguards
was dictated to us, reportedly against the
views of the Department of Atomic Energy.
The point some commentators have made
that the Indo-US civil nuclear cooperation
was merely an opening gambit but really a
pre-requisite and first step for Indo-US
strategic partnership, has meant a heavy
price not only in terms of the very expensive
PRIVILEGED
GROUPING
Being a
member of
Wassenaar
Arrangement
might have
helped our
case for NSG
D
uhaime’s law dictionary defines consensus as “A decision achieved
through negotiation whereby a hybrid resolution is arrived on an issue,
dispute or disagreement, comprising typically of concessions made
by all parties, and to which all parties then subscribe unanimously as an
acceptable resolution”.
(http://www.duhaime.org/LegalDictionary/C/Consensus.aspx)
Another definition given by the ISO and the International Electrotechnical
Commission states: “Consensus: General agreement, characterized by the
absence of sustained opposition to substantial issues by any important part
of the concerned interests and by a process that involves seeking to take
into account the views of all parties concerned and to reconcile any conflict-
ing arguments. Consensus need not imply unanimity.”
Whatisconsensus
DIPLOMACY/ Column
34 June 30, 2016

nuclear power stations to be set up by the US
but imposed unpalatable and humiliating
restrictions on even more vital strategic
dimensions.
I
ndia had entered into a civil nuclear
cooperation agreement with the USSR
in 1987. When a similar request for civil
nuclear cooperation was made during Smt
Indira Gandhi’s regime, this request was
turned down unless India agreed to put all
her nuclear facilities under the Full Scope
Safeguards regime under the IAEA. Ob-
viously this would have put paid to all our
nuclear options.
In 1987, I was able to persuade the USSR
government to agree to such co-operation
under site-specific safeguards—islanded
safeguards—where only the Nuclear Power
Stations set up with Soviet assistance would
be subject to safeguards.
The Soviet Union was a member of the
NSG then, as now and they winkled out an
arrangement with them, permitting the
implementation of the Indo-Soviet agree-
ment, setting up 10x1000 VVR Nuclear
Power Stations. The first unit was set up at
Koodankulam. This illustrates the flexibility
which some members have within the NSG.
What stops important members of the NSG
from using this precedent? Another question
is, whether we could have become members
of the Wassenaar Arrangement and Australia
Group before applying for admission, rein-
forcing our case for admission to NSG.
A more cynical but hopefully realistic
denouement could be as follows:
The US, Russia and France all have signed
civil nuclear cooperation agreements with
India for setting up a large number of nuclear
power stations in India. These would all
involve export of nuclear fuel and nuclear
technology to India, which would militate
against the proclaimed objectives of the
NSG. NSG has already made an exception for
India by giving a clean waiver.
If the US and France were to stop the set-
ting up of nuclear power stations in India,
they would stand to lose very expensive con-
tracts running into tens of billions of dollars
over the course of implementing six Nuclear
Power Stations each. Also, having entered
into these contracts which involved very
complex negotiations, especially over the lia-
bility clause, would the US and France desist
from fulfilling these lucrative contracts?
Very doubtful indeed.
This line of thinking would lead one to the
conclusion that irrespective of the outcome
of the NSG plenary meeting in Seoul, US and
France could just ignore the NSG if necessary
and proceed with their contracts. Other
nations like Japan, which actually owns the
Westinghouse Corporation, would follow
suit. Canada and Australia have already ente-
red into agreements with India on supply of
uranium. Speculating further, this scenario
would imply a subtle diplomatic play to iso-
late China, expose its deceptive, if not deceit-
ful motives for equating India—a perfect
non-proliferator, with Pakistan—a thief and
known proliferator, which has colluded with
China and the ultimate pariah state of North
Korea. A “heads I win, tails you lose” con-
summation devoutly to be wished.
The author was Indian ambassador to
Vienna and Permanent Representative to
IAEA and UNIDO from 1997-2000
India’s
position is
that it meets
the purported
objectives of
the NSG, i.e.
to prevent the
proliferation of
nuclear
weapons.
IL
CENTER OF NUCLEAR POWER
The IAEA headquarters in Vienna

The June 2 mayhem
which left 29 dead shows
how political patronage can
embolden a self-proclaimed
cult and its leaders to occupy
public property, break the
law and resort to the use of
illegal arms.
By Kumar Rajesh
R
ESIDENTS of Mathura
are still to get over the
mayhem that was
unleashed in the heart
of this bustling temple
town on June 2. What
transpired not only
shocked the entire nation but also brought
into focus the violence that can result when
members of a crazed cult enjoying political
patronage take the law into their own hands.
Cult of
Violence
On that eventful June evening, things took
an extreme turn when the Uttar Pradesh
police stormed Jawahar Bagh—a 280-acre
public park—to evict some 2,000 squatters
who were illegally occupying it for the last
two years.
The police action was the result of an
Allahabad High Court order which directed
the state government to clear the park of the
encroachers. But those occupying the park
chose to take on the men in khaki who they
SPOTLIGHT/ Mathura
REMAINS OF THE DAY
Charred vehicles at
Jawahar Bagh bore
witness to the carnage
unleashed by members
of the Swadheen
Bharat Subhash Sena
36 June 30, 2016
Photos: UNI

saw as veritable intruders into their rightful
land. In the violence that ensued, 29 persons
were killed, including a superintendent of
police and a station house officer.
Several hundreds were injured. The police
party, by all accounts, was ill-equipped
and caught unaware by the hostile reception
it encountered.
SELF-PROCLAIMED CULT
At the center of the sordid episode was the
self-proclaimed cult calling itself the
Swadheen Bharat Subhash Sena—referred to
locally as the Bose cult or Subhash cult.
Its leader, Ram Vriksha Yadav, who died
in the violence, is better remembered
in Mathura as a militant maverick
with crazed and exaggerated notions of him-
self and the powers of his cult than for any
signs of spirituality.
He considered himself a revolutionary
king inspired by Subhash Chandra Bose.
Yadav’s many ridiculous demands reflected
his warped and demented persona. These
included: making petrol available at `1 a
liter; bringing gold coins back into circula-
tion; imposing the rule book of Bose’s Indian
National Army (INA) as law; re-issuing cur-
rency notes used by the INA and banning the
consumption of non-vegetarian food.
But how did Yadav and his band drop
anchor at Mathura’s Jawahar Bagh? He was
apparently marching with his followers to
Delhi to raise the cult’s bizarre demands at
Jantar Mantar when he decided to halt at
Mathura for a few days. That was in 2014.
Ram Vriksha Yadav and his Bose Sena decid-
ed to stay on and began calling Jawahar Bagh
their home. Soon, many cult members had
their families joining them.
Mahatma Gandhi, who propagated the
concept of self-sufficient village economies as
an ideal to be pursued, would have been
appalled to see his dream being distorted
into a dictatorial nightmare by the Bose
Sena. Ram Vriksha Yadav ran his commune
with an iron hand and his followers were
brainwashed into believing that they were
insulated from the rest of the world and were
a law unto themselves. The commune at
Jawahar Bagh could not have sustained itself
for two years without political patronage and
administrative backing.
PARALLEL GOVERNMENT
“Ram Vriksha Yadav was running a parallel
government, complete with administration,
revenue and armed force, within the park
since 2014. This is not possible without exec-
utive/legislature support,” argued Kamini
Jaiswal before a division bench of the
Supreme Court, constituting Justices PC Roy
and Amitava Roy. She was representing the
petitioner, Ashwini Kumar Upadhyay, who
had filed a PIL seeking a CBI inquiry into the
Jawahar Bagh mayhem. “A CBI inquiry is
necessary to find out the root cause of the
MASS BLOODSHED
Ram Vriksha Yadav, leader of the
Bose Sena, died in the clashes;
(bottom) police pay homage to
one of their colleagues who was
killed by Sena members

Mathura incident and nexus among the
executive, legislature and the extremist
group. The Union government is ready for
the CBI enquiry of the Mathura incident but
the Uttar Pradesh government is not recom-
mending it,” Jaiswal told the bench.
She alleged that the encroachers had
political backing and the state police would
not be able to conduct a free and fair probe
into the case. Her burden was that the head
of the cult was close to some powerful politi-
cians and the Mathura administration had
intentionally not taken action against the
Bose Sena. She pointed out that the police
sprung into action only after the High Court
order. Though the apex court directed the
petitioner to approach the High Court first,
those who know UP politics confirm much of
what was presented before the Supreme
Court bench.
The preliminary report submitted by the
state government to the center on the inci-
dent is revealing. A police contingent led by
SP Mukul Dwivedi (who was among the two
officers who died in the operation) had gone
to Jawahar Bagh on June 2 when it came
under attack. The report noted that 47 coun-
try-made pistols, four rifles, hundreds of car-
tridges and explosives were later recovered
from the Bose cult camp. How could arms
have been sourced by Yadav and his followers
without the knowledge of the local police and
state and central intelligence?
Very clearly, the illegal occupation of
Jawahar Bagh could not have happened
without powerful political backing. This was
not an individual or a family encroaching
into a small plot. It was 2,000 people (some
estimates put this figure at 3,000) occupying
280 acres of government property and run-
ning a township within Mathura! That leads
us to the obvious question: Why didn’t the
Mathura police and administration act
against the cult for two long years?
The answer is fairly simple. The cult and
its leader had the “right” political connec-
tions. And this nexus, many will aver, are
manifestations of social and moral degrada-
tion that is not symptomatic to UP alone but
the entire country.
BLAME GAME
Post-Mathura, accusations are flying thick
and fast. BJP president Amit Shah has
demanded that Mulayam Singh Yadav, the
Samajwadi Party chief, sack his brother and
UP PWD minister Shivpal Yadav for alleged
links with Ram Vriksha Yadav. Another BJP
leader and a central minister, Uma Bharti,
told a TV channel: “Ram Vriksha was killed
as he could have spilled the beans about his
links with Samajwadi Party leaders.” Ram
Vriksha had reportedly campaigned for sen-
ior SP leader Ram Gopal Yadav’s son and
Ferozabad MP Akshay Yadav.
A diametrically opposite criticism is
aimed at the BJP. It is alleged that it had
encouraged and trained Bajrang Dal activists
to infiltrate the Bose cult and they were
responsible for triggering the violence. The
aim: to tarnish the image of the ruling
Samajwadi Party government ahead of
assembly elections in 2017.
Whoever was responsible for the violence
must be punished. Also, those who patron-
ized Yadav and his cult must not be let off the
hook. It is said that those who forget history
are condemned to repeat it. One can only
hope that the Mathura mayhem is not conve-
niently forgotten without any lessons learnt.
Also, spare a thought for the 23 children
orphaned in the violence. Their tears have
their own story to tell… IL
BJP president
Amit Shah has
demanded that
Mulayam Singh
Yadav, the
Samajwadi Party
chief, sack his
brother and UP
PWD minister
Shivpal Yadav
(right) for alleged
links with Ram
Vriksha Yadav.
SPOTLIGHT/ Mathura
38 June 30, 2016

NATIONAL BRIEFS
Center moves on
simultaneous polls
—Compiled by Tithi Mukherjee
The move to hold simulta-
neous assembly and Lok
Sabha elections has gathered
momentum, with the center
setting up a committee in the
law ministry to study its feasi-
bility. The committee is likely
to submit its report by July.
The move comes after the
Election Commission support-
ed the idea of holding
simultaneous elections for the
first time in a letter to the law
ministry.
“If there is political con-
sensus and will across the
board, needless to say that the
Commission supports the idea
of considering simultaneous
elections,” the EC wrote.
Devas Multimedia, the
private partner of
Indian Space Research
Organization’s (ISRO) com-
mercial arm Antrix has
been accused of Foreign
Exchange Management Act
(FEMA) violations.
The Enforcement
Directorate has asked Devas
Multimedia to explain why
it should not be asked to
pay $134 million (`578
crore). The ED is looking
into the role of some senior
officials in both the govern-
ment and ISRO who had
drafted the agreements and
executed the deal that
caused wrongful gains of
`578 crore to Devas
Multimedia.
The Antrix-Devas deal is
being investigated under
both FEMA and Prevention
of Money Laundering Act.
In November 2010, the Central Bureau of
Investigation busted a racket wherein large
finance companies in India sanctioned huge cor-
porate loans and disclosed confidential informa-
tion in return for bribes. But it has now decided
not to pursue the case due to lack of evidence.
The agency had then arrested five executives
from LIC, LIC Housing Finance Ltd, Bank of
India, Central Bank of India and Punjab
National Bank. It also arrested three top execu-
tives of Money Matters Financial Services, a
money market intermediary. The CBI’s decision
comes after a special court in Mumbai recently
discharged the executives.
The Central Bureau
of Investigation
questioned Uttarakhand
chief minister Harish
Rawat about a sting video
that allegedly showed him
negotiating a deal to lure
rebel Congress legislators
ahead of a floor test in the
assembly on March 28
which did not take place. A
fortnight ago, on May 24,
Rawat was questioned for
the first time, after which
the agency claimed he had
not shared “complete
details”. It resorted to fur-
ther questioning Rawat for
over two hours and a CBI
source has discreetly
admitted that Rawat may
be interrogated again, if
necessary. The CBI regis-
tered a preliminary inquiry
on April 29 when
Uttarakhand was under
President’s Rule.
CBI quizzes
Uttarakhand CM
ADelhi trial court has
acquitted alleged
Maoist ideologue Kobad
Ghandy of terror charges
under the Unlawful
Activities Prevention Act,
on the ground that the
police failed to produce any
reliable evidence.
He was, however, con-
victed of cheating and for-
gery and sentenced for the
period which he has
already spent in prison
from September 2009. But
Ghandy (68) will remain in
jail as he faces around a
dozen more cases.
Ghandy free of terror charges
ISRO partner gets
`578cr notice
CBI drops finance
company racket

The second phase of agitation by this community sees Manohar Khattar’s
government better prepared to deal with any contingency even as it banks on
the courts to stifle further dissent
By Vipin Pubby in Chandigarh
T
HE rookie BJP govern-
ment of Manohar Lal
Khattar in Haryana
appears to have learnt its
lessons after first getting
its fingers burnt while tak-
ing on Sant Ram-pal in
Hisar last year and then by the gross mishan-
dling of the agitation by Jats in February this
year.
Haryana Learns
The extent of violence during the first
phase of the agitation, the complete failure of
the security forces, the lack of initiative by
the government and the shocking role played
by civil and police officers, combined to pro-
vide hard lessons to the government. It was,
therefore, better prepared for the second
phase of agitation that began on June 5. The
government this time sent out strong signals
that it would deal strictly with any kind of
SENSELESS ACTS
The quota agitation in
February had caused
extensive damage to
property
POLITICS/Jat Agitation
40 June 30, 2016
Photos: UNI

The state government has made it clear
that it’s keeping a close watch on those
participating in the agitation and they
would be barred from government jobs.
violence. It even made known that its intelli-
gence units would keep a close watch on tho-
se participating in the agitation and they
would be barred from government jobs.
HARYANA ACTS
Registration of about 2,000 FIRs, arrest of
about 400 protestors and action against a
dozen police officers too had a statutory
effect. The steps taken by the government,
including talks with various factions, also
helped. But it was the decision of one of the
two important Jat organizations and several
influential Khap panchayats not to partici-
pate in the resumed agitation which took the
sheen out of the second phase of the agitation
led by Yashpal Malik of the Akhil Bharatiya
Jat Aarakshan Sangharsh Samiti (ABJASS).
Though the new legislation brought in by
the Khattar government—Haryana Back-
ward Classes (Reservation in services and
admission in educational institutions) Act—
has been stayed by the Punjab and Haryana
High Court, its passage did send a message
that the government had kept its promise of
providing reservation for Jats. The new Act
provided for 10 percent reservation for Jats
and four other categories in the Other Back-
ward Classes (C) category.
its Lesson
JAT FURY
Belligerent protestors
stage a dharna near
parliament in New Delhi,
resuming their protest for
reservation

S
hocking tales of dereliction of duty by
the civil administration and police per-
sonnel in Haryana during the five days
of Jat agitation in February have come to
light. A fact-finding inquiry committee, head-
ed by former Uttar Pradesh DGP Prakash
Singh, released a report which named and
indicted 90 officials, including IAS and IPS
officers, for mala fide and deliberate negli-
gence. “The caste bias of civil and police
officers was seen in the form of inaction
against rioters, connivance with vandals,
absence from duty or desertion and abet-
ment of hooligans,” said the hard-hitting
inquiry report. The report has now been
put up on the official website of the
Haryana government and follow-up action
has been initiated.
It particularly singled out former DGP YP
Singhal who “remained confined to
Chandigarh and didn’t lead from the front”
and the then DC of Jhajjar “who was the
most non performing DC” and added that
she “not only failed to provide leadership, her
role was very negative”. The report said she
was unfit to hold charge of a district. She
retaliated by denouncing the report and say-
ing that it was trying to save the skins of IPS
officers by shifting the blame to IAS officers.
The Punjab and Haryana High Court has
also taken cognizance of the report and
ordered action against those found guilty by
the committee. To ensure that there is no
attempt to brush the findings under the car-
pet, the High Court has declared that it
would monitor the progress of hundreds of
FIRs registered in connection with the Jat
agitation. It has directed district courts to
Fiddling
while
Haryana
burnt
The Prakash Singh Inquiry
Committee Report finds caste
bias and nonchalance among
IAS and IPS officers who
looked the other way even as
rioters had a field day
Khattar, while piloting the Bill, had stated
that his government would take up with the
center the need to include reservation for
Jats under the Ninth Schedule of the consti-
tution to ensure that it was not challenged in
the courts. However, it would be virtually
impossible for the central government to
bring in such legislation. To begin with, the
numbers are not in favor of the NDA govern-
ment. Also, it would not like to open a
Pandora’s Box and invite similar claims from
Jats across the country besides other groups
like the Patels.
COURT INTERVENTION
The Khattar government was also banking
on the premise that the creation of a
Backward Commission would delay interfer-
ence from the courts. Its counsel said as
much in the courts when he pointed out that
HEALING TOUCH?
Chief Minister
Manohar Lal Khattar
addressing people
affected by the
violent agitation in
February
POLITICS/Jat Agitation
42 June 30, 2016

India Legal 30 june 2016

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